Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Taylorsville violated the Open Records Act in the disposition of Lawrence Trageser's January 29, 2016, request for "records reflecting the open records request log book, sheet, list or applicable format, by which the City of Taylorsville documents, lists or records all submitted open record requests to their Official Custodian of Records" between January 1, 2014, and January 26, 2016. For the reasons stated below, we find no violation of the Act.
On February 1, 2016, City Clerk Stephen A. Biven advised Mr. Trageser "that this request is being denied based on the fact that no such records exist." Mr. Trageser initiated an appeal on February 10, 2016, arguing that "the KDLA General Government Retention Schedule allows for and requires that an Open Records Register be retained for 5 years, under L4962, Record Group Number 6."
In response, Taylorsville City Attorney John D. Dale, Jr., states that neither "the [authorizing] statute nor the Retention Schedule requires a public agency to have the series of records set forth in the Retention Schedule, but rather, if the agency does have any of those records, then the agency is to retain the specific records for at least the time period set forth in the schedule." Since the city does not create an "open records register," he argues, it cannot be required to retain, or to grant access to, a nonexistent record.
Mr. Trageser, however, asserts that the city's response issued to each open records request it receives, along with the requests themselves, "together have become and are, the OPEN RECORDS REGISTER listed in L4962." We disagree. Series L4962 in the Local Governments General Records Retention Schedule identifies an open records register as a record which "documents requests for information desired by the public or press and available through the Open Records Law." The schedule specifies that the "record series may contain: Date of request, requesting party name, brief description of information wanted, disposition, disposition date." The Record Description and Analysis, maintained by the Department for Libraries and Archives for this series, identifies the document as "Chronological." Thus, an open records register is a chronological listing of open records requests received and their dispositions.
A record series describes a particular kind of document. The creation of a record series for "open records register" by the Department for Libraries and Archives does not transform a group of disparate documents into a "register" merely because they contain some of the information that might have been compiled into such a register if one existed. Presumably, if the City of Taylorsville had chosen to create an open records register, the myriad request letters and disposition letters themselves would be scheduled as correspondence. Their status as correspondence is not altered by the fact that the city has chosen not to create a register. If Mr. Trageser wishes to make a separate request for all of the individual open records requests and responses made during a certain time period, he is free to do so; however, that was not the nature of the request in this case.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Since no law requires the city to create an open records register, further inquiry is unnecessary. As no open records register or analogous document existed, we find no violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.